Wednesday, November 29, 2017

In the case of W.C. v. Janssen Pharmaceuticals, Inc.,
2017 Pa. Super. 356 (Pa. Super. Nov. 13, 2017 Panella, Ransom, Fitzgerald, J.J.) (Op. by
Panella, J.), the court ruled that allowing counsel to use powerpoint slides as
a visual aid during closing argument was not an abuse of discretion by the
trial court.This was particularly so
given that the court found that the slides did not misrepresent the evidence
presented at trial.

The Superior Court also held that the powerpoint slides were permissible in the Closing Argument even though the slides had not been admitted into evidence.

Notably, the court also held that
opposing counsel had no right to review the materials used in an opponent’s
closing argument prior to the presentation of the same.This decision is otherwise
notable for the Superior Court’s decision that the trial court should have
required clarification as to which part of a witness’s testimony was lay opinion
testimony and which part was expert opinion testimony where that single witness
gave both types of opinion testimony.The Superior Court found that, since no clarification was given at the
trial court level, this was reversible error.

Monday, November 27, 2017

In the case of Tenbus v. Progressive Direct Ins. Co., No. 548-CV-2016 (C.P. Wayne Co. Nov. 22, 2017 Hamill, J.), Judge Raymond L. Hamill entered a Judgment on the Pleadings in favor of a UIM carrier after finding that the Plaintiff failed to state a valid UIM claim under Pennsylvania's Motor Vehicle Financial Responsibility Law and the policy definition of an "underinsured motor vehicle" where the Plaintiff was awarded the full liability limits of the tortfeasor in a related binding arbitration of the third party claims.

In dicta, the court also noted that the Plaintiff's UIM claim was barred by the collateral estoppel doctrine as well.

In the case of Bristol v. Erie, No. 124 MAP 2016 (Pa. Nov. 22, 2017) (Maj. Op. by Mundy, J.) (Wecht, J., Dissenting) the Pennsylvania
Supreme Court held that the statute of limitations in an uninsured motorist
case does not begin to run until there is an alleged breach of the insurance
contract, i.e., the denial of a claim or a refusal to
arbitrate.

This was a 6-1 decision with Justice David Wecht dissenting on procedural
grounds.

The Court delineated the specific issue before it as involving the question of when
the statute of limitations begins to runs for a court action in an uninsured (UM)
motorist claim arising out of an automobile insurance policy containing an
arbitration agreement.

The Pennsylvania Supreme Court noted that this was an issue of first impression in its Court.

The Bristol decision reverses
the Pennsylvania Superior Court's previous ruling in Hopkins v. Erie, which
held that the statute of limitations in an uninsured motorist (UM) benefits claim begins to run on the date of the accident.

In its analysis, the Pennsylvania Supreme Court noted that
the mandates of Pennsylvania statute of limitations law provide that the
statute of limitations begins to run from the time a cause of action accrues or
arises.

The Supreme Court noted that a
cause of action in a UM context accrues or arises when a carrier is alleged to
have breached its contract of insurance.
The Court more specifically held that an uninsured motorist (UM) claim
begins when a carrier denies the claim or refuses to arbitrate.

Given that the carrier had not denied coverage or refused to
arbitrate in this particular case, the court ruled that the lower courts had
erred in granting summary judgment in favor of the carrier on its statute of
limitations argument.

In the UIM bad faith Camiolo v. Erie Ins. Exchange, July Term No. 1750 (C.P. Phila. Oct. 2017 Colins, J.), the court entered a verdict in favor of the carrier on the statutory bad faith claim after a bench trial.

In the Opinion, the court provides a nice recitation of the current status of bad faith law in Pennsylvania, including the recent Supreme Court decision in Rancosky. The decision notes the following points of bad faith law pertinent to the handling of UIM claims as well as with respect to settlement negotiations in such matters.

-UIM carriers are bound by a duty to afford good faith and fair dealing when handling the claims of its insureds

-Where a claim's value is uncertain, the carrier cannot be faulted for undertaking a thorough investigation

-Delay in processing a claim, standing alone, does not establish bad faith

-Low but reasonable valuations do not amount to bad faith particularly where reasonable minds may differ on a fair evaluation of the claims presented

-In managing a UIM claim, it is reasonable for the carrier to negotiate the same way as if it were handling an adversarial third party claim.

While the court allowed the deposition, the court also ordered that the Plaintiff was not permitted to inquire into the claims representative's mental impressions, conclusions or opinions respecting the value or merit of the claims or defenses, or with regards to strategy or tactics. In this regard, the court cited to Pa.R.C.P. 4003.3.

Wednesday, November 22, 2017

In the case of Meyers
v. Protective Ins. Co., No. 3:16-cv-01821 (M.D. Pa. Oct. 10, 2017 Caputo,
J.), the court denied a second Motion to Dismiss filed against a bad faith
claim alleging issues with the investigation and claim evaluation by the
Defendant carrier.

It is noted that this UIM bad faith was previously dismissed
for failure to state a plausible claim.
After the Plaintiff was given leave to amend the Complaint, the carrier
again filed a Motion to Dismiss in this uninsured motorist claim matter. As noted, the court denied the second Motion
to Dismiss.

The court found that the Amended Complaint set forth factual
support to allegations that the carrier refused to promptly communicate with
Plaintiff, repeatedly misrepresented matters to the Plaintiff, and allegedly
failed to comply with various insurance regulations.

Monday, November 20, 2017

In the Blair County Court of
Common Pleas case of Swan v. Moorefield,
No. 2014 GN 2606 (C.P. Blair Co. Sept. 9, 2017 Kagarise, J.), the court denied
a UIM carrier’s Motion to Sever and Stay Bad Faith Claims in a post-Koken
matter.According to the Opinion, the
Motion to Sever was filed pursuant to Pa. R.C.P. 213(b).The court noted that the determination of
whether to sever cases was within the discretion of the trial court and that
the court should make this determination based upon the particular facts and
circumstances of the case before it.In his Opinion, Judge Wade
pointed to a prior Blair County decision in favor of the severance of a UIM
claim from the bad faith claim in the case of Raia v. Agency Ins.Co. of
Maryland (C.P. Blair Co. March 2, 2017 Doyle, P.J.).However, Judge Wade noted that
there were several differences between the case before him and the facts in the
Raia case.For example, Judge Wade noted
that, in the Raia case, Judge Doyle
had reasoned that separating the causes of action would decrease discovery
disputes and allow both cases to proceed more smoothly.In the Swan
case, the motion was filed three (3) years after the Complaint was file and, as
such, the court noted that many of the discovery disputes had already been raised
and resolved.Accordingly, the court
felt that “granting severance now [in the Swan
case] is akin to shutting the stable door after the horse has bolted.”The court also noted that it was
sensitive to the fact that severing could further drag out the resolution of
the bad faith claims in this already three (3) year old case.The court was also influenced to
deny the request for severance under the Plaintiff’s argument that a severance
of the case would necessitate a second jury trial on the common law (as opposed
to the statutory) bad faith claims raised by the Plaintiff.While the court denied the
request for severance of the claim during the course of discovery, the court in
Swan otherwise noted that it would
consider a Motion for Bifurcation at a later time in the proceedings.In this regard, the Swan court pointed to the decision by
the Westmoreland County Court of Common Pleas in the case of Madeja v. State Farm Mut. Auto. Ins. Co.
(C.P. Westmoreland Co. April 11, 2017) in which the court did not sever the
causes of action but did bifurcate the trial proceedings.The Swan
court found that there was “significant merit to the approached taken in the Madeja case and felt that the Madeja court’s reasoning was appropriate
in the instant matter.However, as the
issue of bifurcation was not currently before the Swan court, the court did not rule on that particular issue.As stated, the court in Swan ultimately denied the Defendant’s
Motion to Sever and Stay the extra contractual claims.Accordingly, there is a split of authority on
this issue within Blair County which mirrors the split of authority on this issue across the state courts in the Commonwealth of Pennsylvania.

Thursday, November 16, 2017

In his recent decision in the case of Mulgrew v. GEICO, No. 3:16-cv-02217 (M.D. Pa. Oct. 11, 2017 Caputo,
J.), the court denied a Defendant’s Motion to Sever and Stay the Plaintiff’s
bad faith claim in a underinsured motorist matter.

The court referred to
Federal Rule of Civil Procedure 21 which grants the Federal District Courts
broad discretion in deciding whether or not to sever a case.

Judge A. Richard CaputoM.D. PA

Judge Caputo noted that the factors used to decide a Motion to
Sever under Rule 21 are the same as utilized in deciding a Motion to Bifurcate
under Rule 42(b).

The court differentiated between the two rules by indicating
that a Rule 21 severance essentially creates a separate case, the disposition
of which is final and appealable, whereas Rule 42(b) does not create a new case
but bifurcates issues or claims within a single case for separate trials. A claim that is bifurcated under Rule 42(b)
is not final and appealable as long as the other claims in the case remain
unresolved.

The factors to be considered in deciding such motions to
sever or bifurcate in Federal Court cases includes the following:

- Convenience
of the parties

- Avoiding
prejudice, and

- Promoting
expedition and economy

In denying the Motion, Judge Caputo found that both the
convenience of the parties and the judicial economy weighed against
severance. The court also rejected the
Defendant’s claim that the resolution of the breach of contract action could
greatly impact and potentially moot the bad faith claim. The court noted that litigation on the bad
faith claim is not contingent upon the success of the breach of contract claim
in that a Plaintiff could simultaneously prevail on a bad faith claim while
losing the UIM claim. The court also
found that severance would hinder judicial economy by requiring separate cases
and separate trials instead of handling these claims within a single
action.

The court additionally opined that the potential prejudice
to the carrier of litigating the breach of contract and bad faith claims at the
same time did not outweigh the countervailing goal of judicial economy in the
prompt resolution of the entire matter.

For these reasons, Judge Caputo denied the Motion to Sever
and Stay the Plaintiff’s Bad Faith Claim.

Tuesday, November 14, 2017

In the non-precedential decision by the Pennsylvania
Superior Court in the case of DeCrosta v.
Erie Insurance Group, No. 2982 E.D.A. 2016 (Pa. Super. Oct. 18, 2017) (Bender,
P.J.E., Dubow and Musmanno, J.J.) (Mem. Op. by Musmanno, J.),the court reviewed a dispute between an
insured and its carrier over whether the insured was entitled to stacked UIM
coverage under the case presented.The dispute between the parties revolved around the validity
of a 2004 Waiver of Stacking Underinsured Motorist Coverage Limits form, and
the continued application of that waiver through the removal of a motor vehicle
from that policy and the addition of a separate vehicle in its place.The appellate court affirmed the trial court’s entry of
summary judgment against the insured.In so ruling, the appellate court rejected the insured’s arguments with
respect to the waiver form allegedly being hand-dated by an anonymous person
and given that there was no evidence produced concerning the validity
of the allegedly anonymous dating of the document.The Superior Court noted that, in order to be valid under 75 Pa.C.S.A. Subsection 1738(d) of the MVFRL, a UM/UIM Stacked Insurance Waiver form must be signed,
but not necessarily dated, by the insured.In this case, there is no dispute that the insured had signed the waiver
form.

Accordingly, the appellate court
found that the trial court did not err in ruling that the 2004 waiver form was valid
and that its validity did not hinge upon who dated the document.As to the second issue raised by the Plaintiff, the court
rejected the Plaintiff’s arguments with regard to whether a vehicle added to
the policy constituted a “replacement vehicle, i.e., the insureds have merely
replaced covered vehicle with another, and whether the carrier was required to
present to the insured the opportunity to execute a new UM/UIM Waiver
form.The appellate court affirmed the
trial court’s Opinion that the vehicle added to the policy was a replacement
vehicle under the definition provided by the policy.As a replacement vehicle, the carrier was not
required to have a new stacking waiver executed.Accordingly, the appellate court agreed with
the trial court’s finding that the 2004 waiver form remained applicable and
that, therefore, the insured had waived stacked coverage.

Monday, November 13, 2017

With the Pennsylvania state court systems gradually moving over into the digital age, the Administrative Office of Pennsylvania Courts (AOPC) has taken steps to address the need to protect individuals from identity theft and from disclosure of private information.

Effective this upcoming January 8th, the Public Access Policy of the Unified Judicial System of Pennsylvania will require attorneys to file a certification, with every document filed with the court, that confirms that sensitive, private, and/or confidential information has been redacted from the document.

The certification that shall accompany each filing is required to be in substantially the following form:

"I certify that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents."

Also, if confidential information is contained within the court filing, or in documents attached to the court filing, other documents noted below will have to be filed as well.

Here is a LINK to the Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts.

Here is a LINK to the "Explanatory Report" on the Public Access Policy of the Unified Judicial System of Pennsylvania.

Here is a LINK to the Confidential Information Form which shall be filed whenever a party is required to submit documents or filings containing confidential information with the court filing.

Here is a LINK to a Confidential Document Form which is required to be filed whenever documents attached to the filing contain confidential information that should be shielded from the public.

Thursday, November 9, 2017

The below article of mine providing tips on handling mediations was published in the October 17, 2017 edition of The Legal Intelligencer and is republished here with permission.Should you need any assistance in mediating cases through the end of the year or beyond, I would be happy to help through my venture at Cummins Mediation Services. Please contact me at dancummins@comcast.net for my resume, fee schedule or to arrange for a Mediation. Thank you.

The Art of Mediating: The Goal Is
to Settle, Not Win

The Legal Intelligencer

October 17,
2017

By

Daniel E.
Cummins

With the
uncertainty of what a jury will do in a particular case and the significant
costs associated with trying a case to verdict, alternative dispute resolution
proceedings in the form of mediations and arbitrations have been a rising trend
across the commonwealth of Pennsylvania.

The following
practice tips for nonbinding mediations may assist litigants in bringing their
cases to a desired resolution.

Be Fully Prepared

All too often,
parties may arrive at a nonbinding mediation without having provided the
opposing party with all of the information
necessary to allow for a successful mediation.

On the
plaintiff's side, there are times where a plaintiff has not yet finalized the
information pertinent to the economic damages claims, such as wage loss claims
or medical expenses claims. At times, the parties are still waiting for the
completion of the lengthy process associated with securing health care,
Medicaid or Medicare liens.

It is advisable
to postpone any mediation proceedings until this information has been secured
and documented so as to allow the defense to complete its evaluation and arrive
at the mediation with additional settlement authority. The production of such
information also provides the plaintiff with ammunition to argue for a higher
settlement of the claims presented.

On the defense
side, it may be advisable not to proceed to an arbitration until all written
discovery, depositions and expert review of the claims presented has been
completed.

Plaintiffs
allowing a case to proceed to mediation before such items have been
accomplished may be faced with a defense asserting that there is no additional
settlement authority to be discussed at the conference but that the case may be
revisited after the completion of additional discovery efforts, such as an
independent medical examination of the plaintiff. Plaintiffs can take away this
argument by not agreeing to proceed to mediation until such discovery tasks are
completed.

Written Submissions Are Important

When proceeding
to a mediation, it is important to provide the mediator with a concise, but
thorough, overview of the claims and defenses presented. A concise chronology
of the facts of the underlying matter will inform the mediator as to the legal
issues presented and provide an initial sense as to the value of the claims
asserted.

Written
submissions need not contain a recitation of every medical visit or diagnostic
study completed. Rather, the highlights of the plaintiff's treatment following
the accident will suffice.

On the defense
side, a mediation memorandum can be utilized to raise and provide support for
defenses on the liability issues, the causation question and the alleged extent
of the injuries and damages presented. A defense mediation memorandum can also
be utilized to emphasize the plaintiff's prior medical history so as to confirm
that the case presented involves an aggravation of a pre-existing condition
claim.

There is also
no need to provide a mediator with voluminous written materials to
review. Rather, litigators should emphasize the highlights of the case
through documentary evidence. Rather than providing the mediator with complete
medical records, it may be advisable to only submit the notes of the important
office visits and notable reports of diagnostic films and studies.

Also, rather
than submitting entire transcripts of depositions, the better practice may be
to submit the cover page of the deposition transcript along with the pertinent
pages that may have been cited in the mediation memorandum.

In addition to
not overburdening the ­mediator with unnecessary information, presenting more
concise documentation will also serve to keep the cost of the mediation down as
the mediator will have less to review in preparation for the proceedings.

Oftentimes, the
parties will submit their mediation memorandum and supporting exhibits to the
arbitrator confidentially. The better practice is to disclose your materials to
the opposing party in order that the opposing party may share the same with
their client in order to let their client know of the weaknesses of the case
presented and the strengths of the opponent's case.

Prepare Client and Claims Representative

Most plaintiffs
and some claims representative are not familiar with how the mediation process
works.

The better
practice is to fully inform your client that, at a mediation, the mediator will
likely have all of the parties in the room for an initial conference at which
updates on the case presented can be provided. At the initial conference, both
parties may also be invited to provide their overview of the case presented in
order to let the opposing party know how the case is viewed by the opponent.

A plaintiff
should be advised that he or she may be requested by the mediator at this
initial conference to provide an update as to the client's condition and
treatment. In this regard, a plaintiff who admits to improvement in his or her
condition with the treatment provided to date adds to the credibility of that
litigant. An injured party who contends that there has been no improvement
whatsoever in his or her condition despite years of treatment may have their
overall credibility called into question by the opponent.

If
a plaintiff is reluctant to admit improvement, the plaintiff can add the
proviso of that, while he or she may have improved somewhat over time, the
injuries have not resolved and continue to limit the plaintiff in his or her
everyday activities of daily living.

The client
should be advised that, once the initial conference is completed, the mediator
will likely put each party in a separate room and commence the negotiations by
traveling back and forth between the rooms in a continuing effort to bring the
parties closer together towards an amicable resolution of the claims presented.

The parties should
also be made aware that there may be a reiteration of the same points over and
over with different emphasis on different points at different times during the
course of the mediation. This is all a part of the process of helping each side
of the litigation to fully understand and appreciate the pros and cons of the
claims and defenses presented.

The client and
the claims representative should also be advised that the mediator has been
selected to preside over this mediation because that person has experience in
evaluating the claims presented in the jurisdiction in which the case is
pending. It should be noted to the parties that a mediator typically does not
provide the parties with his concrete evaluation of the case presented as the
job of the mediator is not to evaluate the case. Rather, the mediator's
function is to facilitate negotiations between the parties towards a settlement
figure that each party may not be entirely happy with but are satisfied enough
to agree to conclude the matter.

Listen to What the Mediator Is Saying

When engaging
in a mediation, parties may get so wrapped up in their own position that they
may fail to listen to the information being provided by the mediator after the
mediator has met with the opposing side.

Listening to what
the mediator is reporting from his last conference with the opposing party may
send signals as to where the opposing party may be willing to proceed in its
next step. Listening to such information may also assist the party
hearing the information in formulating their next step in the negotiation
process.

Be Clear on What Can Be Disclosed

At various
times during a mediation, a party may disclose information to the mediator that
the party does not wish to be disclosed to the opposing counsel.

When disclosing
information to the mediator that a party does not wish to be revealed to the
other side, that party should be clear in its statement to the mediator that
such information should be kept confidential. Mediators will keep this
information confidential to keep your trust.

The provision
of such confidential information may assist the mediator in understanding
certain aspects of the case and why a party may be taking a particular position
on a particular issue. The disclosure of such information to the mediator
confidentially may, in the end, assist the mediator in massaging the other side
closer toward a settlement figure.

Willingness to Negotiate

Obviously, the
success of any mediation depends upon the willingness of each party to
negotiate reasonably. In addition to emphasizing the strong points of one's
case, the credibility of the parties will be enhanced by that party's
concession with respect to the weak points of their case presented. An
admission of the weak points of a case, with an associated explanation as to
how that party plans to deal with those weak points at a potential trial, will
provide the mediator with information to take to the other side in the
continuing negotiations on the case presented.

When going into
a mediation, clients and claims representatives should be made aware that the
goal is not to "win" the case, but rather to settle the case and
secure compensation or close a file. Shifting the parties' focus from winning
to settling prior to going into the proceedings may make all the difference in
the success of a mediation. •

Daniel E.
Cummins is a partner and civil litigator with the Scranton law firm of Foley
Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at
www.TortTalk.com. Attorney Cummins also provides Mediation services through Cummins Mediation Services.

Tuesday, November 7, 2017

In the Pennsylvania Supreme Court decision in the case of Lomas v. Kravitz, No. 87 MAP 2016 (Pa. Sept. 28, 2017)(Maj. Op. by Baer, J.)(Dissenting Op. by Saylor, C.J.), the Court affirmed the Superior Court's decision that a recusal motion was untimely where it was filed six weeks after the moving party admittedly learned of the facts supporting a request for recusal.

In this matter, which arose out of a contractual dispute in a construction matter, the Plaintiff asserted that the entire trial court bench should recuse itself from the matter when one of the litigating attorneys involved in the matter was elected to serve as a County Judge on the same Bench.

As noted, the Supreme Court affirmed the finding that the moving Party waived their recusal claim after waiting too long to file the same.

Wednesday, November 1, 2017

I welcome the opportunity to assist you in settling your case through CUMMINS MEDIATION SERVICES.

In addition to my own personal experience of sitting through innumerable settlement conferences as a law clerk for Judge Harold A. Thomson, Jr. of Pike County at the beginning of my career, I have also participated in successful Mediations over the past 17 years as both a litigator and as a Mediator in the Federal Middle District Court Mediation Program. I have additionally attended many continuing legal education courses in an effort to further hone my skills and tools related to fostering ongoing negotiations at Mediations.

To schedule a Mediation, please contact me at dancummins@comcast.net or at 570-346-0745.

DISCLAIMER

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